Department of Justice Supports the RIAA in the Tenenbaum Case

Sunday, March 22nd, 2009 by Harry Lewis

We reported for the first time back in October on the case of RIAA v. Tenenbaum. The Recording Industries have taken one Joel Tenenbaum to task for downloading a few songs while he was a BU student, and Mr. Tenenbaum wants a trial. He is being defended by Prof. Charles Nesson of Harvard Law School. Prof. Nesson has challenged the very constitutionality of the Digital Millennium Copyright Act, on basis that the statutory penalties are so disproportionate to the actual damages that the law functions as a criminal statute even though it is a civil statute. That the DMCA is (for the most part) a civil statute has many consequences — the standard of proof is lower, and the defendant has no right to public defender, for example. The result is that defendants in copyright cases almost never contest; instead they settle up with the RIAA out of court.

There has been some suspense over whether the Obama administration’s Justice Department would enter into this controversy. On the one hand, the new administration prides itself on being the friend of the little guy. On the other hand, both the Vice President and several senior members of the Justice Department have reputations as friends of the copyright industry.

Today we have our answer: the Justice Department has indeed entered the argument, and sides unequivocally with the Recording Industries. The DOJ brief (pdf, 31 pages) urges the judge not to deal with the constitutional question if she can avoid it, and then dismisses every constitutional argument put forward by the defense. According to this summary by Recording Industry vs. the People, the Justice Department memo makes no response to the arguments put forward by the¬†Free Software Foundation in support of Tenenbaum’s case — citing various cases and authorities to the effect that the statutory damages set by the DMCA are unconscionably high.

It’s a disappointment — the DMCA is bad law, as we detail in Chapter 6, and we might have hoped for better from the new administration. But previous Justice Departments had sided with the Recording Industries, so perhaps this should have come as no surprise — even with the enlightened Elena Kagan as the government’s top lawyer.